Two days before the hearing Tice-Menley submitted her affidavit, as well as affidavits from her parents and a psychologist. Without fully detailing all of

Tice-Menley's allegations, she stated that Nunez-Escudero physically, sexually and verbally abused her, and that she was "treated as a prisoner" by her husband and father-in-law. The district court did not decide whether Tice-Menley removed the baby from his habitual residence. Instead, it refused to order the baby's return because Tice-Menley established one of the Article 13b exceptions. Specifically, the court determined that there was a grave risk that the return of the child would expose him to physical and psychological harm and place him in an intolerable situation. The court reasoned: "to a six-month-old child the suggested action would, in fact, be both a physical and a psychological harm to the child." The court explained: "if there's any truth to the potentiality that a six-month-old child would be institutionalized by virtue of this action, that almost goes completely beyond the subject of being an intolerable situation." The next day, the court entered a written order ruling that Tice-Menley established that there is a "grave risk that the return of the child ... would expose him to physical and psychological harm and otherwise place [him] in an intolerable situation."

The Court of Appeals stated that it had recently confirmed that exceptions to the Convention are to be narrowly construed, and that the Convention prohibits a court from adjudicating the merits of an underlying custody dispute, and that the Convention's primary purpose is to restore the status quo and deter parents from crossing international borders in search of a more sympathetic court. Tice-Menley offered some general evidence that the baby could be subject to a grave risk of physical or psychological harm or be placed in an intolerable situation in Mexico. She submitted an affidavit that she was physically, sexually, and verbally abused by her husband. She was not allowed to leave the family home without her husband or father-in-law. She also stated that she feared for her baby's safety. She stated that her husband and his family objected to her nursing the baby and that her husband refused to acquire a baby safety seat for the car. Tice-Menley also detailed accounts of her father-in-law's verbal abuse, and stated that she had seen her father-in- law hit his youngest son with a wooden plunger. This evidence was general and concerned the problems between Tice-Menley, her husband and father- in-law. The district court based its order on the baby's age, the impact of separating the baby from his mother, and the possibility that the baby could be institutionalized during the pendency of the Mexican custody proceedings. Although Tice-Menley's counsel referred to the possibility of institutionalization in argument, Tice-Menley did not offer any such evidence. The Court found that the district court incorrectly factored the possible separation of the child from his mother in assessing whether the return of the child to Mexico constitutes a grave risk that his return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Most of the evidence Tice-Menley presented at the first hearing was irrelevant to the Article 13b inquiry. The Article 13b inquiry does not include an adjudication of the underlying custody dispute, and only requires an assessment of whether the child will face immediate and substantial risk of an intolerable situation if he is returned to Mexico pending final determination of his parents' custody dispute. It is not relevant to this Convention exception who is the better parent in the long run, or whether Tice-Menley had good reason to leave her home in Mexico and terminate her marriage to Nunez-Escudero, or whether Tice-Menley will suffer if the child she abducted is returned to Mexico.

The Court of Appeals rejected Nunez-Escudero's that the Article 13b "intolerable situation" exception applies only if the government agencies and courts of Mexico are unable to protect the child if he is returned to that country. "[I]t is clear that Article 13b requires more than a cursory evaluation of the home jurisdiction's civil stability and the availability there of a tribunal to hear the custody complaint. If that were all that were required, the drafters of the Convention could have found a clear, more direct way of saying so." Because Article 13 provides that the court "shall take into account the information relating to the social background of the child," it has been held that the court may consider the environment in which the child will reside upon returning to the home country. For these reasons, it could not conclude that psychological reports are per se irrelevant. To hold, as the trial court did, that the proper scope of inquiry precluded any focus on the people involved was too narrow and mechanical. Without engaging in an exploration of psychological make-ups, ultimate determinations of parenting qualities, or the impact of life experiences, a court in the petitioned jurisdiction, in order to determine whether a realistic basis exists for apprehensions concerning the child's physical safety or mental well-being, must be empowered to evaluate the surroundings to which the child is to be sent and the basic personal qualities of those located there. It remanded for further proceedings and in instructed the court not to consider evidence relevant to custody or the best interests of the child. On remand, Tice-Menley must present clear and convincing evidence that the return of the child to Mexico would subject him to a grave risk of harm or otherwise place him in an intolerable situation if she is to prevail. Tice-Menley argued that the court could affirm the judgment because the baby was not a habitual resident of Mexico, and therefore, the Convention did not apply. Tice-Menley argued that she had no intention of remaining in Mexico and had no choice in living there because her husband and father-in-law made her a virtual prisoner; that she, as well as the baby, lost the fundamental right of freedom of movement, and neither of them had a voluntary habitual residence in Mexico; that a six-week old nursing infant cannot make a determination of its own "habitual residence," but is dependent for that determination on its mother; that her son's birth and short stay in Mexico did not establish habitual residence there; that no marital domicile exists under Mexican law, and consequently, the Mexican courts had no jurisdiction for determining dissolution or custody issues. She cited several Mexican cases which state that a woman coerced to live in a certain place does not acquire a marital domicile, and that a couple living with their parents cannot establish a marital domicile.

The Court of Appeals could not affirm the district court's ruling on the alternative ground that Nunez-Escudero failed to establish Mexico as the child's habitual residence. It believed that the district court should first make the determination of

habitual residence, and that if the parties wish to further litigate this issue on remand, they were free to do so.